Friday, February 08, 2013

Court dismisses case challenging harassment, retaliation, and homophobia in the college athletics environment

A recent judicial opinion
sheds light on the interrelationship of sexual harassment, retaliation
and homophobia in the college sports environment, as well as the limits
of law to address each. The plaintiff in this case is a former
student-athlete named Idana DeCecco. She sued the University of South Carolina
over a set of incidents involving the head soccer coach, Shelley Smith
and the assistant soccer coach, Jamie Smith, who are married to each
other. DeCecco's case stems from an incident in 2008, in which assistant coach Jamie Smith arranged a "private talk" with DeCecco in an empty locker room behind closed doors. DeCecco
claims that, at one point during the talk, Jamie Smith touched her
knee, at which point she "freaked out" and immediately sought to leave
the room. Upon opening the door, however, she was confronted by an
angry and accusing Shelley Smith. DeCecco alleges that from that point
on, Shelley Smith retaliated her by limiting her playing time and
reducing her scholarship. Including in that retaliation, DeCecco claims, is an inquiry Shelley Smith made into whether DeCecco was dating another player on the team. Eventually, DeCecco transferred to another school to get away from what she called a "toxic environment" at USC.

DeCecco
filed a lawsuit against the university, relying on Title IX and other
law to seek damages stemming from Jamie Smith's sexual harassment and
Shelley Smith's retaliation against her, but last month, the federal
district court in South Carolina dismissed her case in full. First, the
court reasoned that USC did not know that Jamie Smith posed a risk of
sexual hostility to student-athletes, even though other players had
complained about his having made inappropriate comments, including about
players' appearance. The court also reasoned that USC lacked notice of
the locker room incident itself, given that DeCecco failed to report it as sexual harassment to anyone with supervisory authority over him.

DeCecco's
failure to report the locker room incident as one of sexual harassment
also prevented her from being able to pursue a retaliation claim as
well. To challenge retaliation under Title IX, the plaintiff must
engage in protected activity, such as blowing the whistle on sex
discrimination or harassment, and suffer some materially adverse
consequence because of it. If Shelley Smith indeed retaliated against
DeCecco, the court reasoned, it was not because DeCecco had protested or
reported Jamie Smith's behavior, it was due to Shelley Smith's
ostensible jealousy over what she apparently perceived to have occurred
in the locker room -- a motivation that does not qualify as either
retaliation or sex discrimination under Title IX.

As for Shelley Smith's inquiry into DeCecco's
dating status, the court interpreted this as a benign application of
the team's neutral policy prohibiting relationships among teammates, and
concluded that it therefore did not constitute sex discrimination
against DeCecco.

In all, the court's reasoning reflects a high
burden on student-athletes to protect themselves from harassment and
retaliation by coaches. In order to be on notice of Jamie Smith's
capacity to sexually harass DeCecco, other players would have had to
complain much more specifically about what his "inappropriate" comments
entailed, as the university was not faulted for failing to have followed
up for these details. In order for Shelley Smith's reaction to the
locker room incident to count as retaliation, DeCecco would have had to
actively complain to her about Jamie Smith's conduct, even though the
retaliation was motivated by her perception of what had occurred.
Meanwhile, things that the coaches can use as leverage over players,
playing time, scholarships, and, I'd argue, enforcement of the intra-team dating policy, are unexamined as weapons that create and sustain a power imbalance that keep athletes like DeCecco
from speaking up about coaches' bad behavior. Even if the court is
right that the dating policy is neutral because it pertains to teammate
relationships, not same-sex relationships, if the policy is being
deployed in such a way to scare or suppress a player from complaining
about harassment or retaliation, it's discriminatory.

Regardless of its legal liability, USC failed to ensure the safety and
well-being of one of its student athletes. In that sense, the case
should serve as a reminder to college and universities to carefully
monitor the climate within athletics, not only for evidence of
harassment, retaliation, and homophobia, but to ensure that players are
encouraged and supported to report discrimination when it occurs.